Ram Chandra And 12 Others vs State Of U.P. And 4 Others
2019 Latest Caselaw 5430 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Chief Justice's Court
 

 
Case :- SPECIAL APPEAL No. - 83 of 2018
 

 
Appellant :- Ram Chandra and 12 others
 
Respondent :- State Of U.P. and others
 
Counsel for Appellant :- Syed Mohammad Abbas Abdy, H.N. Singh, Sr. Advocate, Vineet Kumar Singh
 
Counsel for Respondent :- C.S.C., M.N. Singh, Nisheeth Yadav, Nishit Yadav, Shyam Lal, Upendra Nath Mishra
 

 
Hon'ble Govind Mathur,Chief Justice
 
Hon'ble Saurabh Shyam Shamshery,J.

(Delivered by Hon'ble Govind Mathur, C.J.)

This appeal is preferred to question correctness of the order dated 08.01.2018 passed by learned Single Bench in Writ-A No. 13820 of 2014. The petition for writ aforesaid has been decided in terms of the judgment given in the case of Suresh Kumar and others Versus State of Uttar Pradesh and others reported in 2016 (10) ADJ 391.

The moot point under consideration before us is that whether respondent-State erred while not filling up 81 posts of Assistant Review Officer belonging to Scheduled Castes and Scheduled Tribes category as per sub-section (2) of Section 3 of the Uttar Pradesh Public Services (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) Act, 1994 (hereinafter referred to as "Act, 1994").

To adjudicate the issue involved, it would be appropriate to introduce the law applicable and the facts involved.

The Act, 1994 :-

To provide reservation to the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens in public service and for matters connected therewith or incidental thereto, the Uttar Pradesh State Legislature enacted the Act, 1994.

Section 3 of the Act, 1994 provides for reservation in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes. As per sub-section (1) of Section 3 of Act, 1994, in public services, there shall be reservation at the stage of direct recruitment, in favour of Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens in a tune of 21%, 2% and 27%, respectively, against the vacancies to which recruitment is to be made.

As per sub-section (2) of Section 3 of the Act, 1994 (prior to its amendment vide Uttar Pradesh Public Service (Reservation for Scheduled Castes, Scheduled Tribes and Other Backward Classes) (Amendment) Act, 2002) (hereinafter referred to as "Act, 2002"), if, even in respect of any year of recruitment, any vacancy reserved for any category of persons under sub-section (1) remains unfilled, special recruitment was to be made for such number of times not exceeding three, as may be considered necessary to fill such vacancy from amongst the persons belonging to the category to which reserved vacancies remained unfilled.

As per sub-section (4) of Section 3, in the event of non-filling of vacancy due to non-availability of suitable candidates, even after special recruitment, it may be carried over to the next year commencing from first of July, in which recruitment is to be made, subject to the condition that in that year total reservation of vacancies for all categories of persons mentioned in sub-section (1) must not exceed fifty per cent of the total vacancies.

By the Constitution 81st Amendment Act, 2000, clause (4-B) was inserted in Article 16 of the Constitution of India. The clause aforesaid reads as follows:-

"Article 16 (4-B) - Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4-A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent reservation on total number of vacancies of that year.

Worthwhile to state that the clause aforesaid was inserted with a view that the vacancies of a year, which are reserved for being filled up in that year, as per provision for reservation made under clause (4) or clause (4-A) of Article 16 of the Constitution of India, if remains unfilled be considered as a separate class of vacancies and be filled by holding special recruitment. Such vacancies are not be included with the vacancies of the year in which those are sought to be filled in. The intention behind it is to keep all the posts of earlier years belonging to Scheduled Castes/Scheduled Tribes categories intact without having any adverse effect thereon due to the ceiling of 50% in reservation of vacancies. In result, these vacancies are open to be filled in by a special drive for recruitment confining to the persons belonging to Scheduled Castes and/or Scheduled Tribes, as the case may be.

Looking to the constitutional amendment aforesaid, corresponding amendment was introduced in the Act, 1994 by the Amendment Act, 2002. As per the Amendment Act, 2002, sub-section (2) of Section 3 was substituted in entirety and sub-section (4) was omitted. For ready reference, the amendments introduced under Section 3 are quoted below to the extent that is relevant for adjudication of present controversy :-

"(1) In public services and posts, there shall be reserved at the stage of direct recruitment, the following percentage of vacancies to which recruitment's are to be made in accordance with the roster referred to in sub-section (5) in favour of the persons belonging to Scheduled Castes, Scheduled Tribes and Other Backward Classes of citizens, -

(a)

in the case of Scheduled Castes

Twenty-one per cent;

(b)

in the case of Scheduled Tribes

Two per cent;

(c)

in the case of Other Backward Classes of citizens

Twenty-seven per cent:

Provided that the reservation under clause (c) shall not apply to the category of Other Backward Classes of citizens specified in Schedule II:

Provided further that reservation of vacancies for all categories of persons shall not exceed in any year of recruitment fifty per cent of the total vacancies of that year as also fifty per cent of the cadre strength of the service to which the recruitment is to be made;

(2) If, in respect of any year of recruitment any vacancy reserved for any category of persons under sub-section (1) remains unfilled, such vacancy shall be carried forward and be filled through special recruitment in that very year or in succeeding year or years of recruitment as a separate class of vacancy and such class of vacancy shall not be considered together with the vacancies of the year of recruitment in which it is filled and also for the purpose of determining the ceiling of fifty per cent reservation of the total vacancies of that year notwithstanding anything to the contrary contained in sub-section (1);

(3) Where a vacancy reserved for the Scheduled Tribes remains unfilled even after three special recruitments made under sub-section (2), such vacancy may be filled from amongst the persons belonging to the Scheduled Castes;

(b)(i) sub-section (3-A), (3-B) shall be omitted;

(ii) sub-section (4) shall be omitted;

(c) for sub-section (5), the following sub-section shall be substituted, namely :-

(5) The State Government shall for applying the reservation under subsection (1), by a notified order, issue a roster comprising the total cadre strength of the public service or post indicating therein the reserve points and the roster so issued shall be implemented in the form of a running account from year to year until the reservation for various categories of persons mentioned in sub-section (1) is achieved and the operation of the roster and the running account shall, thereafter, come to an end, and when a vacancy arises thereafter in public service or post the same shall be filled from amongst the persons belonging to the category to which the post belongs in the roster."

It would also be appropriate to refer that as per clause (d) of Section 2 of the Act, 1994, "year of recruitment" in relation to a vacancy means a period of 12 months commencing on first of July of a year within which the process of direct recruitment against such vacancy is initiated.

The facts pertaining to the dispute :-

The Secretariat, Administrative Department to the Uttar Pradesh Public Service Commission (hereinafter referred to as "Commission") sent requisition in respect of 83 vacancies of Assistant Review Officer belonging to Scheduled Castes and Scheduled Tribes category said to have created in the Uttar Pradesh Civil Secretariat between the years 2001-02 and 2002-03. The requisition was for special recruitment pertaining to the backlog vacancies. A modified requisition was sent on 12.04.2005 making minor change in quantum of total vacancies from 83 to 81.

The Commission vide advertisement dated 02.05.2006 invited applications from eligible candidates to face a process of selection to fill-up the above-mentioned vacancies, out of which, 76 were pertaining to Scheduled Castes and 5 for Scheduled Tribes.

The appellants, belonging to the aforesaid reserved categories, submitted applications and faced the process of selection conducted in pursuance of the advertisement dated 02.05.2006. The result of the written examination was declared by the Commission on 13.08.2012. A select list then was declared wherein name of the appellants figured. The Commission also sent its recommendations to the Uttar Pradesh Civil Secretariat for appointment of 78 candidates of Scheduled Castes and Scheduled Tribes category as against 81 backlog vacancies.

Despite the recommendations made by the Commission, the letters of appointment were not issued to the selected candidates, therefore, certain petitions for writ were filed by the selected incumbents before this Court at Allahabad as well as at Lucknow.

The appellants-petitioners contended that special recruitment was conducted in accordance with the provision of sub-section (2) of Section 3 of the Act, 1994 and, on being selected and recommended by the Commission, they are entitled to be appointed as Assistant Review Officer. According to the appellants-petitioners, no justification was there to detain the appointments as a consequence to the process of selection completed.

The respondent-State contested the petitions with submission that after receipt of the recommendations of the Commission, it was found that requisition which was sent to the Commission for filling up 81 carried forward/backlog vacancies, relating to reserved categories itself was not correct. The vacancies concerned were not carried forward/backlog vacancies being never subjected to any process of selection earlier. The vacancies were neither advertised nor were ever put to process of selection and, as such, the vacancies were nothing but fresh vacancies pertaining to Scheduled Castes and Scheduled Tribes. Such vacancies are to be filled by regular selection process alongwith all the vacancies determined for particular year or years. The respondent-State also placed on record all the notings, on basis of which, the error said to be crypted was noticed.

A Single Bench of this Court at Lucknow considered the entire issue in Suresh Kumar and others Versus State of Uttar Pradesh and others (supra). The judgment impugned relates to a petition for writ of similar nature and that also came to be decided in terms of the judgment given in the case of Suresh Kumar and others Versus State of Uttar Pradesh and others (supra), hence in this appeal, we are examining correctness of the judgment given in the case of Suresh Kumar and others Versus State of Uttar Pradesh and others (supra).

The Single Bench in the case aforesaid while dismissing the petitions for writ held that the Act, 1994 nowhere stipulates a special recruitment of reserved vacancies at the first instance. Section (3)(1) of the Act, 1994 envisages a common selection, at the first instance, for the vacancies whether reserved or unreserved and unreserved vacancies are open to be filled in on basis of merit, irrespective of the category of the aspirant and, as such, the special recruitment without subjecting the vacancies to regular recruitment would adversely affect the opportunity for selection against unreserved vacancies for the members of Scheduled Castes and Scheduled Tribes on basis of their merit.

Arguments advanced and consideration thereof :-

Aggrieved by the findings arrived by learned Single Bench, this appeal is preferred with assertion that clause (4-B) of Article 16 of the Constitution of India provides for holding special recruitment relating to unfilled vacancies of a year which are reserved for year being filled up by the members of Scheduled Castes and Scheduled Tribes and that nowhere stipulates for subjecting such vacancies to a process of selection alongwith the vacancies unreserved.

As per learned counsels appearing on behalf of the appellants, the Act, 1994 and the Rules framed thereunder are also in conformity with the provisions of clause (4-B) of Article 16 of the Constitution of India and, therefore, the finding arrived by learned Single Bench that the unfilled vacancies relating to the Scheduled Castes and Scheduled Tribes, if have not been subjected to a process of selection earlier cannot be treated as backlog/carry forwarded vacancies, is erroneous.

Per contra, on behalf of the respondent-State, it is asserted that clause (4-B) of Article 16 of the Constitution of India as well as the relevant provisions of the Act, 1994 are quite clear and the unfilled vacancies are the vacancies which were subjected to a process of selection and then remained unfilled. A vacancy that was never subjected to a process of selection, as per learned counsel appearing on behalf of the State, by no stretch of imagination can be treated as a vacancy unfilled for the purpose of holding special recruitment.

Heard learned counsels and examined the arguments advanced.

The Act, 1994 was subjected to an amendment to incorporate a provision in consonance to Article 16 (4-B) of the Constitution of India. The submission of the appellants is that Article 16 (4-B) of the Constitution of India and the provisions in consonance to it intends to ensure filling up all the vacancies earmarked for reserved categories and, as such, special recruitment is adopted as an effective device. This mode is not dependent to any common or general process of selection relating to all the vacancies but emphasize for filling up all the reserved posts, hence, the term "unfilled vacancies" represents all the vacancies pertaining to Scheduled Castes and Scheduled Tribes categories, whether subjected to any process of selection or not.

True it is, the provision aforesaid in explicit does not mention for subjecting the unfilled vacancies by a process of selection but a simple interpretation of the same indicates that unfilled vacancies in a year which are reserved for being filled in that year means the unfilled vacancies after initiating a selection process.

To understand the issue, it would be appropriate to mention the background in which 81st Amendment Act was brought and clause (4-B) was introduced in the Constitution of India.

The issue with regard to extent of reservation as per clause (4) of Article 16 of the Constitution of India was subject matter of several cases in different High Courts as well as before the Supreme Court of India. In the case of M.R. Balaji Versus State of Mysore reported in AIR 1963 SC 649, it was held that extension of reservation in public service is a special provision and that should always be less than 50% of total vacancies. While doing so, it was also made clear that how much less than 50% would depend on relevant prevailing circumstances of each cases. Prior to that, in General Manager, Southern Railways Versus Rangachari reported in AIR 1962 SC 36, it was held that reservation under Article 16 (4) of the Constitution of India cannot be used for creating monopolies or for unduly or illegitimately disturbing the legitimate interests of other stakeholders. A reasonable balance must be struck between the claims of Backward Classes and claims of other employees as well as the requirement of efficiency of administration.

On application of the recommendations made by the Mandal Commission constituted under Article 340 of the Constitution of India, the reservation was also extended to Other Backward Classes and that again rise to a good number of litigation. Hon'ble Supreme Court in Indra Sawhney etc. Versus Union of India and others reported in AIR 1993 SC 477 examined various issues relating to reservation, application of reservation to Other Backward Classes and the matters incidental thereto. An important issue before the Court was that "can the extent of reservation to posts in services under the State under Article 16 (4) of the Constitution of India or, if permitted under Articles 16 (1) and 16 (4) together, exceed 50% of posts in a cadre or service under the State or exceed 50% of appointment in a cadre or service in any particular year and can such extent of reservation be determined without determining the inadequacy of representation of each class in different categories and grades of service under the State," and on adjudication, the Apex Court held that the rule of 50% ceiling in grant of reservation laid down in M.R. Balaji Versus State of Mysore (supra) was an appointment rule and not a mere rule of prudence. It was further held that 50% rule should be applied to each year, otherwise it may happen that the open competition channel can be choked for some years and, in the meanwhile, the candidates/aspirants for unreserved vacancies may cross maximum age limit and also lose the eligibility required to hold the posts.

The issue was against came up before Hon'ble the Supreme Court in R.K. Sabharwal Versus State of Punjab reported in (1995) 2 SCC 745, which, as a matter of fact, was a case relating to application of reservation while making promotions. In the case aforesaid, the Apex Court held that reservation in the entire cadre strength may exceed 50% limit, if every year half of the seats are reserved.

Looking to the judgment given in the case of Indra Sawhney etc. Versus Union of India and others (supra), it became impossible for the Central Government as well as for various State Governments to satisfy the carry forwarded vacancies of earlier years, if the entire number of reserved vacancies was to go beyond 50% of the total vacancies to be filled in that specific year. In result, the several carry forwarded vacancies of earlier years which remained unfilled stood lapsed.

The Government of India considered this aspect of the matter on receiving several representations and decided to introduce the constitutional amendment, i.e., 81st Amendment Act, 2000. By this Amendment Act, clause (4-B) in Article 16 of the Constitution of India was inserted. By clause (4-B), "carry forward/unfilled vacancies of a year" are kept out and excluded from the overall ceiling limit of 50% of reservation. A fine segregation of backlog vacancies with the current vacancies is made to have special recruitment to fill up the unfilled vacancies relating to Scheduled Castes/Scheduled Tribes by holding special recruitment confining to these categories. For ready reference, it would also be appropriate to quote the statement of objects and reasons given to introduce 81st Amendment Act, 2000:-

"THE CONSTITUTION (EIGHTY-FIRST AMENDMENT) ACT, 2000, Assented on 9-6-2000 and came into force on 9-6-2000

Statement of Objects and Reasons, - Prior to 29-8-1997, the vacancies reserved for the Scheduled Castes and the Scheduled Tribes, which could not be filled up by direct recruitment on account of non- availability of the candidates belonging to the Scheduled Castes or the Scheduled Tribes, were treated as "Backlog Vacancies". These vacancies were treated as a distinct group and were excluded from the ceiling of fifty per cent reservation. The Supreme Court of India in its judgment in the Indra Sawhney v. Union of India held that the number of vacancies to be filled up on the basis of reservations in a year including carried forward reservations should in no case exceed the limit of fifty per cent. As total reservations in a year for the Scheduled Castes, the Scheduled Tribes and the other Backward Classes combined together had already reached forty-nine and a half per cent and the total number of vacancies to be filled up in a year could not exceed fifty per cent, it became difficult to fill the "Backlog Vacancies" and to hold Special Recruitment Drives. Therefore, to implement the judgment of the Supreme Court, an Official Memorandum dated 29-8-1997 was issued to provide that the fifty per cent limit shall apply to current as well as "Backlog Vacancies" and for discontinuation of the Special Recruitment Drive.

2. Due to the adverse effect of the aforesaid order dated 29-8-1997, various organisations including the Members of Parliament represented to the central Government for protecting the interest of the Scheduled castes and the Scheduled Tribes. The Government, after considering various representations, reviewed the position and has decided to make amendment in the constitution so that the unfilled vacancies of a year, which are reserved for being filled up in that year in accordance with any provision for reservation made under Clause (4) or Clause (4A) of Article 16 of the Constitution, shall be considered as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty percent, reservation on total number of vacancies of that year. This amendment in the Constitution would enable the State to restore the position as was prevalent before 29-8-1997.

3. The Bill seeks to achieve the aforesaid object."

Clause (4-B) of Article 16 of the Constitution of India, in view of whatever stated above, is a device to lift the 50% cap on carry over/backlog vacancies while maintaining ceiling limit of 50% on current vacancies. So far as determination of current vacancies is concerned that is on basis of taking into consideration the existing and anticipating vacancies. However, the backlog/carry forwarded vacancies which remained unfilled is a part of vacancies of earlier years vacancies. This is a part of total vacancies determined but remained unfilled due to non-availability of the candidates belonging to Scheduled Castes/Scheduled Tribes categories. The non-availability of the candidates belonging to this category may be in three eventualities; (i) on initial advertisement of the vacancies, adequate number of persons belonging to Scheduled Castes/Scheduled Tribes may have not applied to participate in the process of selection; (ii) the selection process would have completed without having adequate number of candidates belonging to Scheduled Castes/Scheduled Tribes, consequently reserved posts would have remained unfilled; and (iii) the adequate number of candidates would have participated in the process of selection but would have failed to satisfy the suitability criteria for selection.

In all three eventualities, it is necessary at least to have initiation of selection process by inviting applications from the eligible candidates. Without inviting applications, quantum of current vacancies can very well be determined, but, in no case, the unfilled/backlog/carry forwarded vacancies can be determined. Clause (4-B) of Article 16 of the Constitution of India is meant only for the unfilled carry forwarded/backlog vacancies and, therefore, looking to the eventualities referred above, the pre-condition to hold a special recruitment as permitted under clause (4-B) of Article 16 of the Constitution of India is that there must be at least an advertisement to fill up the vacancies. Only after initiating a process of recruitment, the determination of unfilled vacancies due to non-availability of sufficient members from the concerned socially and educationally backward categories can be made.

We are also aware that the reservation prescribed under Article 16 of the Constitution of India and in other statutes or otherwise is a deviation from the doctrine of equality. This deviation is made with a reasonable classification to uplift socially and educationally backward categories of citizens. In different States of the country, the reservation is prescribed for Scheduled Castes and Scheduled Tribes in a different ratio and that prescribed ratio is not maximum quantum that is to be occupied by members of the Scheduled Castes and the Scheduled Tribes, but minimum quantum of vacancies to be occupied by the members belonging to the categories aforesaid to have their reasonable representation in service. The members of Scheduled Castes and Scheduled Tribes are also having a valuable right to be considered to occupy the unreserved vacancy on basis of their merit. To provide this opportunity to the members of reserved categories, at the first instance, each and every aspirant participating in the process of selection is required to be considered against all vacancy which are open to be filled in by open merit. The vacancies available, at the first instance, are required to be filled in order of merit and, while doing so, the concept of reservation is absolutely irrelevant. Any person belonging to Scheduled Castes and Scheduled Tribes, if stands in merit then he is required to be given the unreserved post as per his merit. After satisfying all the unreserved vacancy candidature of the persons belonging to Scheduled Castes and Scheduled Tribes, if not placed in general merit, must be considered against the vacancies relating to the reserved posts. If any vacancy remains unfilled after making efforts to satisfy the reserved vacancies, then the left out vacancies are backlog vacancies and those vacancies may be subject matter of special recruitment as per Article 16 (4-B) of the Constitution of India and as per sub-section (2) of Section 3 of the Act, 1994. If special recruitment is permitted by treating all the vacancies earmarked for Scheduled Castes and Scheduled Tribes, then that would amount to restrict the appointment of the members of Scheduled Castes and Scheduled Tribes to a maximum quantum of vacancies as per ratio prescribed and that will deprive members of Scheduled Castes and Scheduled Tribes from competing against all the vacancies available including the vacancies relating to unreserved posts. This would cause much harm to the rights of the members of Scheduled Castes and Scheduled Tribes as they would not be in a position to occupy a post in order of their merit despite having merit. This would also be in violation to the concept of equality.

The discussion made above is sufficient to arrive at a conclusion that the "carried forward vacancies or the vacancies or the unfilled vacancies" as referred under Article 16 (4-B) of the Constitution of India and under sub-section (2) of Section 3 of the Act, 1994 are the left out vacancies from the reserved category post subjected to a process of selection. No special recruitment can be availed to satisfy the vacancies which are not subjected to any recruitment process.

In view of it, we do not find any error with the conclusion arrived by learned Single Bench.

The appeal, as such, is having no merit, hence dismissed.

Order Date :- 2.7.2019

Shubham

(Saurabh Shyam Shamshery, J.) (Govind Mathur, C.J.)